V.K. Gupta, J. - (1.) In this appeal against the judgment and Award of the Motor Accident Claims Tribunal passed under Section 11O-A of the Motor Vehicles Act, 1939 the Insurance Company has challenged the legality of the Award on the only question urged before us about the limited statutory liability of the appellant in view of the terms of the Insurance Policy. The learned Tribunal while allowing.the claim petition of the respondents arising out of the death of Late Biman Behari Sarkar has awarded a claim of Rs. 3/- lakhs payable by the appellant--Insurance Comany. While trying the claim petition following six issues were framed by the Tribunal for adjudication:- "1) Is the case maintainable in its present form? 2) Is the case bad for defect of parties? 3) Is the accident take place due to rash and negligent driving of the vehicle No. WMH 1591 ? 4) Is the O.P. Insurance Co. liable to pay compensation. If so, to what extent ? 5) Is the petitioner entitled to get a decree as prayed for ? 6) To what relief, if any, is the petitioner entitled ?
(2.) We have heard the learned Advocates for the parties and considered their rival contentions. The question whether the appellant had a limited statutory liability vis-a-vis the contract of Insurance in question in respect of the vehicle in question or not, was not at all agitated before the learned Tribunal. Admittedly, no evidence to this effect was adduced by the appellant before the Trial Court nor was the insurance policy produced in the Trial Court or brought into evidence. Admittedly also, as we have seen the written statement filed by the appellant, no specific plea was raised by the appellant in the Trial Court to the effect that the appellant had a limited statutory liability which was restricted to any particular amount.
(3.) If an Insurance Company has a limited liability either under the contract of Insurance or under the Statute, it is open to it to take this defence in the written statement to be filed by it before the Claims Tribunal. If such a plea is indeed taken, it becomes the duty of the Insurance Company to prove the fact of limited liability and only after such evidence is adduced, his onus is discharged. As we have seen in the present case neither any such plea was taken nor was any evidence adduced nor even the insurance policy been produced before the Court. The learned Tribunal was therefore justified in fastening the liability of the appellant to pay the Award amount in its entirety.;